Exhibit 10.1
EMPLOYMENT AGREEMENT
THE OZONE MAN, INC.
THIS AGREEMENT is entered into as of
November 16, 2008 by Dr. Halden Shane
(the "Employee" and The Ozone Man, Inc. (the "Company"), a Florida
Corporation.
1) Duties and Scope of Employment.
a) Position. For the term of
his employment under this Agreement
(the
"Employment"), the Company agrees to employ the
Employee,
which, effective as of October 23,2007, shall be in the
position of
Chief Executive Officer of the Company or in such
other level
equivalent or higher-level position as the Company
Subsequently
may assign to the Employee. The Employee shall
report to
the Company's Board of Directors (the "Board") and
shall
continue to serve throughout the term of this Agreement as
The Chairman
of the Board. Throughout the term of his
employment,
Employee shall have such power, authority and
responsibility and perform such duties as are prescribed by or
under the
Bylaws of the Company and as are customarily
associated
with the position of Chief Executive Officer. Schedule
"A" to this
Agreement sets forth particular objectives associated
with
Employee's position, which Employee shall endeavor to meet.
b) Obligations to the Company.
During his Employment, the
Employee
shall devote his full business efforts and time to the
Company.
During his Employment, the Employee may, during
nonworking
hours away from the Company's premises, engage in
lawful
conduct as an employee, consultant or volunteer for an
organization
other than the Company ("Other Work"); provided,
however,
that such Other Work does not include, without
limitation,
conduct that (i) constitutes a breach of fiduciary duty
to the
Company, (ii) constitutes a breach of the duty of loyalty to
the Company,
(iii) constitutes a breach of Employee's Proprietary
Information
and Inventions Agreement with the Company, (iv)
constitutes
a breach of this Agreement, (v) competes with the
Company's
business, (vi) knowingly assists any person or entity
in competing
with the Company, (vii) knowingly assists any
person or
entity in preparing to compete with the Company, or
(viii)
assists any person or entity in soliciting any employees or
consultants
of the Company to leave with Company. In the event
that the
Employee engages in Other Work, the Employee must, at
least five
(5) business days prior to engaging in lawful conduct in
business
activities other than the Company's business, or in
material
charitable and political activities not directly associated
with the
Company during nonworking hours away from the
Company's
premises, notify the Company in writing of the
Employee's
activity and purpose of activity, name of employer
(if any) or
organization, position with respect to the activity or
the entity
and any potential conflict that may arise from that
activity,
including the number of hours spent engaging in such
activity
that may or will detract from the business of the
Company, and
the Board shall have the right to approve such
Other Work
to activities. The Employee shall comply with the
Company's
policies and rules, as they may be in effect from time
to time
during his Employment. Notwithstanding the foregoing,
the Company
acknowledges and approves Employee's current
role as
President and Chairman of the board of Tiger
Management
International, LLC.
c) No Conflicting Obligations.
The Employee represents and
warrants to
the Company that he is under no obligations and/or
commitments,
whether contractual or otherwise, that are
inconsistent
with his obligations, under this Agreement. The
Employee
represents and warrants that he will not use or
disclose, in
connection with his employment by the Company,
any trade
secrets or other proprietary information or intellectual
property in
which the Employee or any other person other than
the Company,
has any right, title or interest and that his
employment
by the Company as contemplated by this Agreement
will not
infringe or violate the rights of any other person. The
Employee
represents and warrants to the Company that he has
returned or
destroyed all property and confidential information
belonging to
any prior employer. The Employee agrees to sign
the current
versions and any future versions of the Company's
various
agreements related to confidentiality, inventions and
related
intellectual property matters.
d) Commencement Date, CEO Date
and Location. The Employee
had
officially commenced work for the Company effective on
October 23,
2007 ("CEO Start Date") by oral agreement. This
agreement
will be effective January 1, 2009. The Employee shall
be located
in the Beverly Hills office of the Company.
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2) Cash and Incentive Compensation
a) Salary. The Company
initially shall pay the Employee as
compensation
for his services a base salary at a gross annual rate,
excluding
incentive bonuses that may be approved by the Board,
of Three
Hundred Ninety Thousand Dollars ($390,000) from the
Commencement
Date. However Employee may elect to have his
compensation
deferred until a later date. When paid such base
salary shall
be payable in accordance with the Company's
standard
payroll procedures. (The annual base salary specified in
this
subsection (a), together with any increases in such
compensation
that the Company may grant from time to time, is
referred to
in this Agreement as "Base Compensation.") All
future
changes to compensation will be based on the results of
evaluations
of the Employee's performance, whether such
evaluations
are performed annually, or more frequently as may be
initiated by
Employee's senior management or the Board;
provided,
however, that $390,000 base salary referred to above
shall be
increased by a minimum of eight percent (8%) during
each of the
first and second twelve (12) month periods following
the
Commencement Date.
b) Incentive Bonuses. The
Employee will be eligible for annual
incentive
bonuses based on objective or subjective criteria
established
in advance by the Board and or the Compensation
Committee of
the Board in its sole discretion (but after
consultation
with the Employee) and presented to the Employee,
and the
determinations of the Board with respect to such bonuses
shall be in
the sole discretion of the Board and shall be final
and
binding.
c) Performance Bonus Stock.
Subject to the approval of the Board,
the Company
may grant the Employee restricted stock, stock
options or
other equity securities, from time-to-time, covering the
shares of
the Company's equity securities. The terms of such
grants,
options and other equity securities shall be as determined
by the Board
at the time of any such grant. Such terms shall be
provided in
writing to the Employee at the time of any such
grant. In
accordance with the Company's 2008 Stock Incentive
Plan (the
"Plan"). The restricted stock described above will be
subject to
the terms and conditions of the Plan. The Company
will review
the Employee annually for purposes of making
equity
grants; provided that such grants shall based on objective
or
subjective criteria established by the Board and or the
Compensation
Committee of the Board in its sole discretion (but
after
consultation with the Employee). The determinations of the
Board with
respect to such grants shall be in the sole discretion of
the Board
and shall be final and binding.
3) Vacation and Employee Benefits.
During his Employment, the Employee shall
be eligible for paid
time off ("PTO") in accordance with the
Company's standard
policy for similarly situated employees,
as it may be amended
from time to time, with his initial
accrual at the rate of thirty nine
(39) days per year, accrued hourly in
accordance with the
Company's payroll practices, with a
maximum accrual of thirty-
nine (39) days or three hundred and twelve
(312) hours. During
his Employment, the Employee shall be
eligible to participate in
any employee benefit plans maintained by
the Company for
similarly situated employees, subject in
each case to the generally
applicable terms and conditions of the
plan in question and to the
determinations of any person or committee
administering such
plan based on the terms of the plan and
Company policy.
4) COBRA Reimbursement.
a) During his Employment, if
the Employee declines for a period of
time to
participate in the employee health insurance (medical
and/or
dental) benefit plans maintained by the Company and
instead
timely elects to continue his health insurance coverage
pursuant to
COBRA (as defined in Section 8(c)) under his prior
plan, the
Company agrees to pay the Employee as reimbursement
for payments
made by the Employee for such Health coverage.
b) The Company shall use
commercially reasonable efforts to
procure a
term policy of life insurance on the life of Executive
with a death
benefit of at least Five Million Dollars ($5,000,000)
for a
beneficiary or beneficiaries to be designated by Executive,
and the
Company shall pay all premiums and any other ordinary
costs or
expenses incident to maintaining such policy in effect
during the
Term. In connection with the procurement of such
policy,
Executive shall, at such time or times and at such place or
places as
the Company may reasonable direct, submit Himself to
such
physical examinations and execute and deliver such
documents as
the Company may deem necessary or appropriate.
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<PAGE>
As an
alternative to procuring such policy, the Company may
authorize
Executive to procure such policy, and the Company
shall
reimburse Executive for the reasonable costs incurred by
Him in
connection with the procurement of such policy. Upon the
expiration
or termination of the Employee for "good reason" by
the Company
other than for "cause", Executive shall have the
right to
maintain such policy at Executive's cost and expense.
5) Parking.
During the term of this Agreement, but
only for so long as the
Company, in its reasonable discretion,
determines that it is cost-
effective, the Company shall pay for a
parking space for the
Employee's use in a parking garage close
to the Company's
Beverly Hills Office.
6) Legal and Business Expenses.
During his Employment, the Employee shall
be authorized to
incur necessary and reasonable travel,
entertainment and other
business expenses in connection with his
duties hereunder. The
Company shall reimburse the Employee for
such, legal and other
business expenses upon presentation of an
itemized account and
appropriate supporting documentation, all
in accordance with the
Company's generally applicable
policies.
7) Term of Employment.
a) Background Check. This
employment is contingent on the
Company
receiving a satisfactory background and consumer
credit
report. When the credit report is conducted, the Company
will comply
with the federal Fair Credit Reporting Act and
applicable
state laws, including providing the Employee with any
required
notices or forms.
b) Basic Rule. The Company
agrees to continue the Employee's
Employment,
and the Employee agrees to remain in Employment
with the
Company, from the period commencing on the
Commencement
Date until the date when the Employee's
Employment
terminates pursuant to subsection (c) or (d) below.
c) Termination. Executive's
employment and Term will terminate
on the first
of the following to occur:
(1)
Automatically upon Executives death.
(2)
Upon written notice by the Company to Executive of
termination due to Disability (as defined below). For the
purpose of this agreement, "Disability" shall mean a
condition that entitles Executive to benefits under an
applicable Company long-standing disability plan or, if no
such plan exists, a physical or mental disability which, in
the reasonable judgment of the Company's board of
directors, is likely to render Executive unable to perform
his duties and obligations under this agreement for 180
days in any 12-month period.
(3)
Upon written notice by the company to the Executive of a
termination for "cause" under Section 8d of this Agreement.
(4)
Upon termination for "Constructive Termination or for
"Change of Control" under Section 8b (i), 8b (ii), 8b
(iii),8b (iv) and 8e.
(5)
Upon "Voluntary Termination" by the Executive under
Section 8b (v) of this Agreement.
d) Rights Upon Termination.
Except as expressly provided in
Section 8,
upon the termination of the Employee's Employment
for any
reason (or no reason), including for Cause, the Employee
shall only
be entitled to the compensation, benefits and
reimbursements described in Sections 2,3,4,5 and 6 for the
period
preceding
the effective date of termination, except for benefits
that by
their terms are for periods following such effective date.
The payments
under this Agreement shall fully discharge all
responsibilities of the Company to the Employee.
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e) Termination of Agreement.
This Agreement shall take effect on
the
Commencement Date and shall terminate when all obligations
of the
parities hereunder have been satisfied. The termination of
this
Agreement shall not limit or otherwise affect any of the
Employee's
obligations under Section 8.
8) Termination Benefits.
a) General Release. In order
to receive the benefits described in
subsections
(b) and (c) below, the Employee must (i) execute a
reasonable
general release (in a form prescribed by the Company)
of all known
and unknown claims that he may then have against
the Company
or persons affiliated with the Company, (ii) as part
of such
general release, agree to a mutual non-disparagement
with the
Company, and (iii) agree not to prosecute any legal
action or
other proceeding based upon any of such claims.
b) Severance Pay.
i. If, during the term of this Agreement, the
Company
terminates the Employee's Employment (including
through "Constructive Termination" as defined
below) for any reason other than Cause or Permanent
Disability (as defined below), then the Company shall
pay the Employee his Base Compensation for a period
of twelve (12) months (the "Base Continuation
Period"), shall pay monthly and ratably over such
twelve (12) month period the average of the last two
annual incentive bonuses paid during the 24 months
prior to termination (the "Average Bonus"), and shall
accelerate the vesting of any outstanding stock options
or
other equity securities such that the Employee will
become vested in an additional number of shares
subject to such stock options or other equity
securities, as if the Employee provided another twelve
(12) months of service with the Company.
Notwithstanding anything in this Agreement to the
contrary, to the extent require by Section 409A of the
Internal Revenue Code of 1986, as amended (the
"Code"), if at the time of termination of Employment,
the Company has a class of stock that is publicly
traded on an established securities market or
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